HON’BLE SRI JUSTICE A. RAJASHEKER REDDY Writ Petition No.9248 of 2014 Date: 19-06-2014 Between:
MCL-RSR (JV), represented by its authorized Signatory R. Gopal Krishna .. Petitioner AND The State of Andhra Pradesh, represented by its Secretary, Irrigation and CAD, Secretariat, Hyderabad and 4 others .. Respondents HON’BLE SRI JUSTICE A. RAJASHEKER REDDY Writ Petition No.9248 of 2014 ORDER:
This writ petition is filed for declaring G.O.Ms.No.32 Irrigation & CAD (PW M & MI CA.II) Department, dated 17-02- 2014 and consequential Memo No.28712/M & MI C.A.II/2011, Irrigation and CAD (PW.CA.II) Department, dated 17-02-2014 issued by the 1st respondent as illegal and unconstitutional.
2. The case of the petitioner is that the petitioner was awarded Agreement No.15 of 2005-2006 dated 23-09-2005 in respect of conducting, survey, detailed investigation of Bhupathipalem Reservoir Project Canals, system to irrigate 23086 acres in 45 villages in Rampachodavaram, Gangavaram and Gokavaram Mandals of East Godavari District and to feed an additional ayacut of 8485 acres of Surampalem Reservoir Scheme duly diverting 0.81 TMC of water from regulator of KM 18.55 of Main canal with duty 100 acres per cusec and including sub-soil exploration, fixing alignment, preparation of the particulars, design drawings, preparation of detailed estimates as per SSR 2004-2005 of the department on EPC basis. It is stated that the petitioner after signing the agreement, mobilized men and machinery required for the completion of the work as per the schedule, but the work could not be proceeded with as per schedule on account of several reasons beyond the control of the petitioner and not attributable to the petitioner. The Land Acquisition proceedings in respect of this work were completed only towards the end of the year 2009. The Departmental Authorities taking into consideration their own faults extended the time for completion from time to time till 31-12-2009 and the work was completed on 29-12-2009 and the date of completion of defect liability expired on 31-12-2011. It is also stated that as per the project report prepared by the department, the originally contemplated ayacut was only 12,104 acres and as per the Tender agreement, a canal of the length of 31.5 KMs was required to be executed and the petitioner executed canal works to the tune of 32 KMs. The petitioner was also required to execute the distributaries and field channels and cross masonry and cross drainage works and it was contemplated that this work would irrigate 23,086 acres and the total design discharge of the main canal as per the parameters was 3.335 Cumecs and the petitioner has executed the works to facilitate the discharge of 3,960 cumecs, which is in excess of the required discharge. It is further stated that the 2nd respondent vide proceedings No.CE/ISP/SE/ DPM/EE(D)/DEE-5/AEE 14/BRS/Vol.2/176L, dated 23-05-2008 directed modifications to the work which was already completed resulting in an additional expenditure of Rs.4,08,86,500/- and that the petitioner by its letter No.MCL-RSR (J.V.)/BRS/Canals/TW/329/10, dated 08-11-2010 pointed out that it had incurred expenditure to the tune of Rs.4,08,86,500/- and requested for payment of the said amount along with certain other extra expenditure to the tune of Rs.4,55,56,800/- incurred which are not contemplated in the tender agreement and the petitioner, therefore, requested for release of Rs.8,64,43,300/-. It is further stated that the 3rd respondent through his letter No.SE/ISLMC/ Tuni/DB-D & BRS-Canals 33 CE, dated 13-01-2011 recommended the payment of Rs.7,49,70,600/- towards cost incurred for the extra works and requested the 2nd respondent to place the request of the petitioner before the State Level Standing Committee. It is also stated that as per the Government Memo No.34843/Reforms-A, dated 04-01-2010, the Government has agreed to increase the rates for excavation of Distribution and field channels under the EPC Contract system in accordance with which the petitioner through his letter dated 25- 06-2011 requested for release of the enhanced amount of Rs.5,29,06,000/-.
3. It is further stated that the 3rd respondent through letter dated 28-06-2011 stated that the 4th respondent has verified the claim of the petitioner and arrived at a figure of Rs.5,29,06,000/- which is payable to the petitioner as per the Government Memo dated 04-01-2010. It is also stated that the petitioner has two claims to a tune of Rs.12,78,76,600/- (Rs.7,59,70,600/- + Rs.5,29,06,000/-) against the respondents 1 to 4 and the 1st respondent without taking into account the facts and circumstances is seeking recovery of Rs.4.81 crores on the ground that the petitioner failed to bring 23,086 acres under the ayacut, overlooking the fact that as per its own norms 3,335 cumecs of discharge cannot bring 23,086 acres under the ayacut.
The 4th respondent, in pursuance of G.O.Ms.No.8, dated 18-02- 2003, issued letter dated 08-11-2013 for taking steps for invoking bank guarantees for an amount of Rs.44,21,750/-, Rs.26,90,000/- and Rs.25,00,000/-. Being aggrieved by the said G.O.Ms.No.8, dated 18-02-2013 and consequential letter dated 08-11-2013, the petitioner filed W.P.No.32972 of 2013, which was disposed of on 25-11-2013 with a direction to the respondents to finalise the claims of the petitioner and thereafter, the respondents issued the impugned G.O. Ms.No.32, Irrigation & CAD (PW M&MI CA.II) Department, dated 17-02-2014 and the consequential Memo No.28712/M & MI C.A.II/2011, Irrigation & CAD (PW.C.A.II) Department, dated 17-02-2014 and the present writ petition is filed challenging the same.
4. The petitioner also filed additional affidavit along with WPMP. No.13731 of 2014 stating that the petitioner is entitled to a claim of Rs.5,29,06,000/- in accordance with the Government Memo dated 04-01-2010 and the claim was rejected without assigning any rational reasons. In the present case, the contract was awarded on 23-09-2005, which was supposed to be completed by 22-09-2007, whereas the land acquisition proceedings were completed only towards the end of 2009 and the Department itself granted extension and the rates contained in Memo dated 04-01- 2010 were fixed taking into account the delay in the land acquisition proceedings as the contractor who signed a contract in the year 2005 could not be expected to complete the work in 2009 at the old rates. It is also stated that the Government issued G.O.Ms.No.13 Irrigation & CAD (PW: Reforms) Department, dated 07-02-2014 wherein it has decided to pay the arrears as per the current prevailing rates as per the Government orders in respect of the balance works that are pending as on 01-04-2013. It is also stated that in a similar case, the Government in G.O.Ms.No.64, Irrigation & CAD (M & MI.TI.A1) Department, dated 24-07-2013 in respect of JCR-DLIS-Phase II Tapaspally (v), Cheriyal (M), Warangal District has accorded permission for grant of enhanced rates as contained in Government Memo dated 04-01-2010 even in respect of a contractor who completed only 33.16% works up to end of December, 2009 and suspended the work from 01-01-2010 onwards. It is further stated that the Department cannot recover Rs.6.14 crores from the petitioner by merely issuing a G.O. as the petitioner is disputing its liability to pay the said amount and in terms of the tender agreement, all disputes and differences between the parties in excess of Rs.50,000/- have to be adjudicated in a Civil Court of competent jurisdiction by way of a regular suit as per the judgment reported in State of Karnataka v. Sharee Rameshwara Rice Mills, Thirthahalli (1987 (2) SCC 160).
5. Heard the learned counsel for the petitioner, who reiterated the contentions raised in the writ petition. He relied on a decision reported in State of Karnataka v. Sharee Rameshwara Rice
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Mills, Thirthahalli . He further submits that the petitioner is entitled to his claim as per Government Memo dated 04-01-2010 issued by the 1st respondent as the same benefit was extended to other contractors, as such, the petitioner is entitled for an amount of Rs. 5,29,06,000/- from the Government. He also contended that this Court directed the respondents to consider the case of the petitioner, but the respondents, without considering the same, issued the impugned G.O. and the consequential memo. He further contended that the Government issued G.O.Ms.No.13, dated 07-02-2014 wherein it was decided to pay the rates as per current prevailing rates as per the Government orders in respect of balance works that are pending as on 01-04-2013, which is extended to other contractors and that the rejection of claim of the petitioner, is illegal, arbitrary and discriminatory. He further contended that if the respondents had to recover any amount from the petitioner, they may approach the civil court for recovery of the amount as per Clause-3 of the terms and conditions of the agreement, but the respondents cannot straight away recover the amount from the petitioner.
6. On the other hand, the learned Government Pleader for Irrigation submits that the petitioner has completed the work in the year 2009 and made his claim belatedly that too after issuance of the Government Memo dated 04-01-2010 much after completion of work and hence, the claims are not only belated but also untenable. He also contends that in pursuance of the direction of this Court in W.P.No.32972 of 2013, the Engineer-in-Chief, Indira Sagar Polavaram Project-the 2nd respondent submitted a report to the 1st respondent on 24-12-2013 stating that the Superintending Engineer has not furnished any justification or analysis for considering the claim vide his letter dated 13-01-2011 basing on which the impugned G.O. and the consequential memo are issued rejecting the claims of the petitioner. As such, there is no flaw in the impugned G.O. as well as the memo. He further contended that the 1st respondent also issued G.O.Ms.No.32, Irrigation & CAD (PW M & MI CA.II) Department, dated 17-02-2014 for recovery of the amounts due in spite of reduction of ayacut from 14028 acres to 11525 acres and that as per clause 3 of the terms and conditions of the agreement, the petitioner has to approach the Civil Court for any grievance or any dispute arising out of the agreement and that the writ petition is not maintainable for recovery of the amounts. He further contends that these are all disputed questions of fact, which cannot be adjudicated in a writ petition. He also contends that a report was submitted by ENC as early as on 05-04-2008 in respect of the reduced ayacut to the Government and that through the Memos dated 26-03-2011, 05-07- 2011 and 23-05-2013, the Government directed to place the issue before the State Level Committee, which through its minutes dated 30-05-2012 recommended reduction of contract price by Rs.4.81 crores which is the financial implication due to shortage in the command area and that subsequently the Government issued G.O.Ms.No.8, dated 18-12-2013 according permission for reduction of agreement value for Rs.4.81 crores and that meanwhile, excess payments were made in spite of proposals pending with the Government. He further contended that an amount of Rs.2,86,62,165/- is already recovered and balance amount is to be recovered.
7. In the instant case, the case of the petitioner is that the respondents are liable to pay amounts to the petitioner as per the Government memo dated 04-01-2010 which states that if the ayacut under the canal is more than 10,000 acres, it shall be treated under Main Canal and Branches and normal ERM adopted for estimation purpose and if the ayacut under canal is less than 10,000 acres, it shall be treated as Distributory system. The said Government Memo also discloses the recommended rates viz., per acre cost of Distributaries having an ayacut up to 10,000 acres including per acre cost of field channels Rs.9,000/- for distributory and Rs.1,500/- for field channels for the works in upland areas where the topography is in steeper and per acre cost of distributaries having an ayacut up to 10,000 acres including per acre cost of field channels Rs.7,500/- for Distributory and Rs.1,500/- for field channels for the works in plan areas where the topography if greater than in 1000. As such, the Government cannot recover the amounts due from the petitioners for reduction of ayacut unless the Government determines the amounts payable to the petitioner vide Memo dated 04-01-2010. The case of the petitioner is that the Government has to approach the Civil Court in accordance with Clause 3 of the terms and conditions of the agreement for recovering the amounts and that the Government cannot unilaterally recover the amounts from the petitioner. The decision relied on by the learned counsel for the petitioner in State of Karnataka v. Sharee Rameshwara Rice Mills, Thirthahalli (stated supra) has no application to the facts of the present case since that was a case where damages were sought to be recovered unilaterally, but in the present case, the recovery is not on account of damages, but on reduction of ayacut area and reduction in estimated contract value and the petitioner’s case is recovery can be done only after the petitioner’s claim is determined. More so, in pursuance of the directions of this Court, the respondents considered and passed the impugned G.O. as well as the Memo rejecting the claim of the petitioner. Having carefully gone through the pleadings, the respective contentions of the parties and the material on record, I am of the view that the issues raised in the present case are all pure disputed questions of fact arising out of contractual obligations, which cannot be adjudicated in a writ petition by exercising the power of judicial review under Article 226 of the Constitution of India and hence, the writ petition is bereft of any merit and the same is liable to be dismissed.
Accordingly, the writ petition is dismissed. However, it is open for the petitioner to invoke appropriate remedy in accordance with the terms and conditions of the agreement entered into by the petitioner with the respondents in respect of his grievance. There shall be no order as to costs.
As a sequel thereto, miscellaneous petitions if any pending shall stand closed.
A. RAJASHEKER REDDY, J Date: 19-06-2014 Ksn
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